September 23, 2022

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Barristers were paid more than €17.5 million in legal fees by the Chief State Solicitor’s Office (CSSO) last year but the identities of the highest- and lowest-paid earners cannot be disclosed “for GDPR reasons”, according to the government information service.

Solicitor Fred Logue, a specialist in information law, told The Irish Times he could not see how GDPR is a reason for non-disclosure of the information in response to a general request as opposed to one made under the Freedom of Information Act.

“This information was provided in the past, including in response to parliamentary questions, and the relevant law has not changed,” Mr Logue said.

The Irish Times had asked the CSSO, a constituent of the Attorney General’s office, for the amounts paid by it to barristers and solicitors in 2021 and for the first six months of 2022.

Details of the top 20 earners, and the 20 lowest paid, were also sought.

The request was made in the context of concerns expressed by some barristers, as disclosed in a 2021 survey of barristers for a recently-published strategic review of the profession for The Bar of Ireland (TBOI) by consultants EY, about unfair allocation of work. The information was also sought following the development by the council of TBOI of an equitable briefing policy.

In reply to the request, the government information service (GIS) stated the CSSO had paid €17.537 million to barristers and €162,000 to solicitors in 2021.

In the first six months of 2022, it paid €7.283 million to barristers and €84,000 to solicitors.

“The identities of the top 20 and the bottom 20 earners cannot be given for GDPR reasons,” it stated. Asked for further clarification, the GIS said: “There is no clear legal basis for the release of this information under Article 6 (1) GDPR.”

Article 6.1 outlines the circumstances under which the processing of personal data can be lawful.

Asked for its view on the GIS position, a spokesperson for the Bar Council said it has engaged with the CSSO on the appropriate reporting of briefing data.

“In designing our new Equitable Briefing Policy, representatives of the council liaised with all agencies of the State, and we continue to urge them to publish relevant data to achieve the goals of the policy and their own commitments to equality and transparency.”

In January 2021, the Office of the Information Commissioner (OIC) upheld a refusal by the CSSO of a request for access, under section 42(f) of the Freedom of Information Act, to copies of invoices and fee notes submitted by certain named barristers to the Department of Finance for legal work undertaken on the tax case involving tech giant Apple.

That request was made by Right to Know CLG, a group which campaigns for the right of citizens to access information about how Ireland works.

Section 42(f) states the FOI Act does not apply to records held or created by the AG’s office, other than records relating to “general administration”. The CSSO argued the information sought related directly to a legal case and did not fall within general administration.

There is, the CSSO said, a clear distinction between financial records concerning the internal operation of its office (such as expenditure on payroll) and financial records concerning legal proceedings in which the CSSO acted as solicitor for the State. It said the legal fees sought were specific to the particular litigation and were not a record relating to general administration.

Right to Know had argued the data sought fell under the categories of “pay matters” and/or “accounts” and had no link whatsoever to the Attorney General/CSSO role in advising on legislation or litigation. Section 42(f), it said, is intended to protect the CSSO’s role as a legal adviser but not matters relating to its finances, the bills it pays, and the costs it incurred for outside legal expertise.

While noting the FOI Act did not specify the meaning of “general administration”, the OIC held that “general administration” referred to records concerning the management of the AG’s office and its constituent offices, such as records relating to personnel, pay matters, and the like.

The commissioner was satisfied that general administration does not refer to records relating to matters concerning the core business of the AG’s office which includes advising on legislation and litigation.

On that basis, the OIC held the records requested did not relate to general administration and Right to Know was not entitled to disclosure.

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